Bad Blood

Lawyer v. Court. Guess who wins?

On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.

Neither the court nor Dow, a professor at the University of Houston Law Center and one of the best known death penalty defense attorneys in the country, will comment publicly. But this move is the latest evidence of an ongoing feud in Texas between lawyers who appeal on behalf of inmates facing executions, Dow chief among them, and the judges who rule on their claims. On the surface, the fights have been about deadlines, but, as criminal justice blogger Scott Henson described Dow’s relationship with the judges back in 2009, “Basically these folks just don't like each other on a level that transcends any given issue.”

Miguel Paredes was executed last October for a triple murder of gang rivals, committed in 2000. The summer before the execution, he wrote a letter to Dow asking for help, and Dow volunteered — without being appointed to the case — to investigate Paredes’ claims. It took a while owing to Dow’s busy schedule, but he found that Paredes’ original lawyer had called no witnesses at the trial and that Paredes was allowed to waive an early appeal while on anti-psychotic medications.

Dow filed an appeal and a call for a stay seven days before the execution. The court said he should have filed it the day before. The court has explicitly said the deadline is seven days before an execution, but in practice attorneys know that they must have it in eight days before.

It wasn’t the first time Dow had clashed with the court over deadlines. One evening in October 2007, shortly after the U.S. Supreme Court agreed to review Kentucky’s lethal injection protocol, Dow and his colleagues raced to write a new appeal for their client Michael Richard. As they worked to argue how the Kentucky case mirrored their own, they later said, their computers broke down, and they asked the Court of Criminal Appeals to wait 20 minutes after their 5pm deadline so they could deliver the appeal by hand.

“We close at 5,” was the response by the court’s head judge Sharon Keller. Those four words became a rallying point for the death penalty’s opponents and made her a villain (“Sharon Killer”) in newspaper editorials across the country. The National Association of Criminal Defense Lawyers sent a complaint about her actions to the Texas Commission on Judicial Conduct.

The commission’s report on the matter called Keller’s conduct “not exemplary of a public servant,” but cast firm doubt on Dow’s computer breakdown story and took him to task for “making inaccurate statements in the press” about how soon the appeal was actually ready, which “spun out of control” into a “public groundswell of opposition against Judge Keller.”

In June 2011, Keller’s court issued a new rule about filing deadlines. A pleading would be “deemed untimely” if it was filed “fewer than seven days before the scheduled execution date.” The rule goes on to say that a “request for a stay of execution filed at 8 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6 p.m. is untimely.”

Dow filed a motion to stay Paredes’ execution at 12:37 p.m. on October 21st. The execution was set for October 28th at 6 p.m. It was more than seven days in advance, but violated the rule’s example. Pull out a calendar if you find this all a bit confusing.

At a hearing last month, Dow went before the court to defend his late filing. The court found that he and his partner “failed to show good cause for the untimely filings.”

In Dow’s corner are defense attorneys who think the narrow and peculiar application of deadline rules allows the judges to avoid what went wrong at the original trial. The judges were “focusing very narrowly on 15 hours of time rather than the case as presented,” said Kathryn Kase, director of the Texas Defender Service and a former colleague of Dow’s. “It’s somewhat like saying, ‘You were working too late in the emergency room,’ while not focusing on the grievous injuries the patient has.”

As for the trial defense lawyer, who called no witnesses even as his client faced a death sentence, the judges had no complaints.